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New Jersey Division of Child Protection and Permanency v. Y.A.

Superior Court of New Jersey, Appellate Division

October 25, 2013

Y.A., Defendant-Appellant. IN THE MATTER OF THE GUARDIANSHIP OF J.L., Minor.


Submitted September 25, 2013

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FG-14-0032-12.

Joseph E. Krakora, Public Defender, attorney for appellant (Anthony J. Vecchio, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Elizabeth Sherwood, Deputy Attorney General, on the brief).

Joseph E. Krakora, Public Defender, Law Guardian, attorney for minor J.L. (Lisa M. Black, Designated Counsel, on the brief).

Before Judges Sapp-Peterson and Hoffman.


Defendant Y.A. appeals from the December 11, 2012 judgment of guardianship entered by the Family Part terminating her parental rights to her then three-year-old son, J.L. (Johnny).[1]Defendant contends that plaintiff New Jersey Division of Child Protection and Permanency (the Division)[2] failed to prove by clear and convincing evidence the requisite statutory factors to establish that Johnny's best interests would be served by terminating her parental rights. The Law Guardian supports the termination of defendant's parental rights.

In a cogent written opinion, Judge Mary Gibbons Whipple addressed the standards governing termination of parental rights, N.J.S.A. 30:4C-15.1(a)(1) to (4), as well as pertinent case law, and concluded the Division had proven its case by clear and convincing evidence. After careful review of the trial record, we conclude the trial judge's decision is soundly based on substantial credible evidence of record, and, therefore, should not be disturbed on appeal. Accordingly, we affirm, substantially for the reasons stated by Judge Whipple in her written opinion issued on November 30, 2012.


We derive the following facts from the trial record. Defendant is the biological mother of Johnny, who was born in May 2009. On May 27, 2010, the Division received a referral from Dr. Jacek Sakowski, Johnny's pediatrician, reporting that he had observed unexplained cuts and bruises on Johnny. Dr. Sakowski stated that defendant brought Johnny to his office two days earlier due to what appeared to be a heat rash from an allergic reaction. When defendant returned with Johnny for a follow-up appointment on May 27, Dr. Sakowski observed bruising on Johnny's ribcage, back, and left inner thigh, as well as small cuts on his left thigh and left arm. Defendant provided no explanation for the bruises and cuts. Dr. Sakowski indicated that the marks could have been caused by squeezing the child. Prior to the referral, Dr. Sakowski, who had been treating Johnny since December 2009, had never observed any bruises or marks on the child.

Division workers visited defendant's residence to investigate the referral that same day. The workers observed visible scratches on Johnny's arms, inner thighs, and left calf, and multiple abrasions on both sides of his ribs. Additionally, Johnny had a rash covering his body.

When questioned about the bruises, defendant claimed that Johnny woke up crying at approximately 3:30 a.m. that morning, so she gave him a bottle, which helped put him back to sleep; when she dressed him in the morning, she noticed the bruises and then took him to the pediatrician in the afternoon. Defendant denied leaving Johnny alone with anyone from Monday, May 24, 2010 through Thursday, May 27, 2010. The workers advised that they needed to take Johnny to a doctor for an examination, and transported him and defendant to the Audrey Hepburn Children's House at Hackensack University Medical Center.

Dr. Nina Agrawal conducted the physical examination and spoke with defendant, who indicated that she was the only caregiver for Johnny. Defendant claimed that she did not know what caused the marks on Johnny and speculated that the marks could have been caused at daycare. Dr. Agrawal concluded that

the injuries in this patient are highly consistent with physical abuse. The location, distribution, severity, and appearance of the bruises and abrasions are not consistent with accidental trauma, particularly in a one-year-old infant with limited gross motor abilities. It is of paramount importance that the safety of this patient is ensured immediately. Additional testing is required to determine the possible presence of additional injuries.

Dr. Agrawal recommended hospital admission for Johnny to permit further testing and observation. When defendant did not agree to Johnny's hospital admission, the Division effected an emergency removal pursuant to N.J.S.A. 9:6-8.29.[3]

On June 1, 2010, a Family Part judge signed an order to show cause and granted the Division custody of Johnny, who was then placed in foster care. This order granted defendant weekly supervised visits with Johnny.

The Family Part held a fact-finding hearing regarding the abuse and neglect allegations against defendant on September 23, December 1, and December 14, 2010. On January 5, 2011, the trial judge issued an order stating the court had determined that defendant had "caused the injuries to the child that resulted in severe bruising on his body on or about May 27, 2010." Defendant appealed the order and we affirmed. Div. of Youth & Family Servs. v. Y.A., No. A-2047-11 (App. Div. Dec. 11, 2012) (slip op. at 16).

Following the removal, the Division initially placed Johnny in foster care. On February 18, 2011, the Division placed Johnny with his maternal grandfather and his grandfather's wife (collectively "grandparents") in Pennsylvania. Johnny remains in their care and they want to adopt him.

The Division also provided defendant with visitation and counseling services. Despite counseling, defendant continually denied she had abused Johnny and otherwise refused to accept any responsibility for his injuries, even though she was the child's sole caretaker. When defendant failed to make any progress, the Division, with the court's approval, changed its goal from reunification to termination of parental rights. On September 14, 2011, the Division filed its complaint for guardianship.

Judge Whipple presided over a four-day guardianship trial between September 21, 2012 and December 11, 2012. The Division offered testimonial evidence from its caseworkers, Felipe Sanchez and Hayleen Rodriguez, who recounted the history of the Division's involvement with defendant, and the Division's efforts to reunify defendant with Johnny.

The Division also presented the testimony of Elizabeth Smith, Psy.D., who completed a psychological evaluation of defendant, as well as bonding evaluations of Johnny with defendant and Johnny with the grandparents.

Prior to administering the psychological evaluation, Dr. Smith said she reviewed defendant's history with the Division. Dr. Smith found significant: the nature of the substantiated abuse, defendant's continued denial of the abuse and her belief that the injuries occurred as the result of a drug reaction, and defendant's failure to make progress despite two years of psychological treatment.

Regarding her psychological evaluation, Dr. Smith testified defendant "presented with a very flat affect . . . [T]here wasn't a lot of emotion in her face. There wasn't a lot of emotion talking about her child and the injuries he sustained." Dr. Smith found defendant's affect unusual because normally parents appear distressed when talking about injuries to their children, even where the injuries lead to the Division's involvement.

Dr. Smith found defendant's account of what occurred very terse and practiced, stating that she "was very rigid in this belief that she didn't do anything [and] it wasn't abuse, even in the first place. And that it had been a drug reaction." Defendant expressed to Dr. Smith that she felt people had lied; she claimed that daycare personnel lied to the Division by stating that they had told her to take Johnny to the ...

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